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Abstract

From 1890, when the right to privacy was defined, to the 1973 debut of the Fair Information Practice Principles that set the “Gold Standard” for consumer privacy protection, to the FTC’s request for a federal privacy law in 2000, the core expectations of privacy have remained the same. United States consumers have a right to privacy that requires notice and consent for the use of their personal information. The Apple iOS 14.5 update introduced App Tracking Transparency, providing consumers with the opportunity to affirmatively opt in or decline the tracking and sharing of their personal information. This update has shown that when faced with a simple, comprehensible choice to opt in to the sale of their personal information, only 15% of responding consumers in the United States consent to this invasive surveillance. The majority of online applications and websites currently track and share personal information without consumer knowledge or consent. Such data sharing subjects individuals to potential privacy harms, like discrimination, reputational damage, social stigmatization, and safety concerns. Absent a comprehensive federal privacy law, states have begun passing their own privacy laws creating a fragmented patchwork of regulation. This trend is leading away from pro-consumer fundamentals of privacy, increasingly favoring business backers. There have been calls for federal privacy legislation for decades. This article will be among the first to analyze the iOS 14.5 update and emerging state privacy laws. This article argues that United States consumers’ thirst for privacy, as exemplified by the iOS 14.5 update results, should be utilized as an overarching guide for Congress when enacting comprehensive federal privacy law. By drawing from principles of the iOS 14.5 update and the European General Data Protection Regulation (GDPR), and from some features of recent state privacy laws, Congress should enact federal privacy legislation that applies to all businesses collecting consumer personal information and requires affirmative opt-in consent for data sharing and tracking. Consumers have spoken. It is time for Congress to utilize this data and provide a high level of privacy protection for all Americans.

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